People v. Lofthaug CA2/6

Filed 1/24/25 P. v. Lofthaug CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B334139 (Super. Ct. No. NA095476-01) Plaintiff and Respondent, (Los Angeles County)

v.

STEPHEN LOFTHAUG,

Defendant and Appellant.

Stephen Lofthaug appeals from a Penal Code section 1172.751 resentencing. He claims: (1) the trial court abused its discretion in declining to strike a section 667, subdivision (a)(1) (§ 667(a)(1)) enhancement; (2) appellant’s counsel was ineffective for failing to object to the trial court’s ruling on that enhancement; and (3) error in the calculation of his credits. We will reject appellant’s resentencing claims but remand for recalculation of his credits.

1 Undesignated statutory references are to the Penal Code.

FACTUAL AND PROCEDURAL BACKGROUND On November 21, 2013, appellant pleaded guilty to continuous sexual abuse of a child (§ 288.5, subd. (a)). Appellant admitted a strike prior (§ 1170.12, subds. (a)-(d)), a serious felony prior (§ 667(a)(1)), and a prison prior (§ 667.5, subd. (b) (§ 667.5(b)). Pursuant to the parties’ plea agreement, the trial court sentenced appellant to 38 years in prison: the upper term of 16 years on the continuous sexual abuse count, doubled to 32 years due to the strike prior, plus five years for the serious felony prior and one year for the prison prior. In December 2022, following identification by the California Department of Corrections and Rehabilitation (CDCR), the court determined appellant might be entitled to resentencing under section 1172.75. After receiving briefing from appellant’s counsel, the court held a resentencing hearing. At the September 19, 2023 hearing, the court incorrectly stated that appellant’s original sentence included three section 667.5(b) prison priors. Thus, the court miscalculated appellant’s sentence as 40 years. Appellant’s counsel said she “came up with 39,” one year closer to the actual term of 38 years. The court replied: “Okay. Well, math is not my strong suit. But in any case, the legislators have since abrogated the prior prison enhancement under California rules, three prison priors under 667.5(b) are stricken. The defendant wants to re-structure the sentence, which is not part of the plea agreement, for a mid- term sentence with all the enhancements. The court declines.” The court found “no justification to strike that nickel enhancement under Penal Code section 667(a)(1).” The court “continue[d] to honor the plea agreement and [struck] one of the two prior strikes so that the plea agreement [would] remain in effect.” The court sentenced appellant to 37